Howard v. Brewer

OPINION
& ORDER GRANTING RESPONDENT'S MOTION TO DISMISS,
DENYING RELIEF ON POTENTIALLY-TIMELY CLAIM, DISMISSING THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING
PETITIONER'S MOTION TO STAY PROCEEDINGS, DENYING A
CERTIFICATE OF APPEALABILITY, & DENYING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL

GEORGE
CARAM STEEH UNITED STATES DISTRICT JUDGE

I.
INTRODUCTION

Michigan
prisoner Bernard Howard (“petitioner”) has filed
a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 alleging that he is being held in custody
in violation of his constitutional rights. He was convicted
of three counts of first-degree felony murder and one count
of possession of firearm during the commission of a felony
following a jury trial in the Recorder's Court for the
City of Detroit (now part of the Wayne County Circuit Court)
in 1995 and was sentenced to concurrent terms of life
imprisonment without parole on the murder convictions and a
consecutive term of two years imprisonment on the felony
firearm conviction. The matter is before the Court on
respondent's motion seeking dismissal of the petition as
untimely under the one-year statute of limitations applicable
to federal habeas actions, as well as Petitioner's
subsequently filed motion to stay the proceedings. Having
reviewed the matter, the Court concludes that the petition is
untimely and must be dismissed for failure to comply with the
one-year statute of limitations set forth at 28 U.S.C. §
2244(d). Additionally, to the extent that one habeas claim
may be timely, the Court concludes that the claim must
nonetheless be dismissed for lack of merit. The Court further
concludes a stay is unwarranted. Lastly, the Court concludes
that a certificate of appealability and leave to proceed in
forma pauperis on appeal should be denied.

II.
FACTS AND PROCEDURAL HISTORY

Petitioner's
convictions arise from his participation with co-defendants
Kenneth McMullen and Ledon Salisbury in the robbery and
shooting deaths of three people in Detroit, Michigan on July
16, 1994. The Michigan Court of Appeals described the
relevant facts, which are presumed correct on habeas review,
see 28 U.S.C. § 2254(e)(1); Wagnerv. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as
follows:

Defendants' convictions stem from the July 16, 1994,
robbery and shooting deaths of three individuals, Marcus
Averitte, Reshay Winston, and John Thornton, each of whom
died from multiple gunshot wounds. Testimony indicated that
marijuana, cash, and other items of personal property were
stolen from the victims. Witnesses at trial placed McMullen,
Salisbury and a third unidentified individual at the scene of
the crime near the time of the shootings. The police
investigation produced evidence that the victims were shot
with three different firearms. One witness heard a barrage of
gunshots and then observed a van, which she later identified
as belonging to codefendant Salisbury, pull away from the
crime scene at a high rate of speed. A subsequent search of
codefendant Salisbury's house led to the discovery and
seizure of a Glock 9mm semi-automatic pistol that was later
identified as one of the firearms used in the offense.

Shortly after the offense, the police obtained a written
statement from defendant McMullen, wherein McMullen admitted
assisting Howard and Salisbury in the commission of the
offenses. However, McMullen claimed that it was Howard and
Salisbury who shot the victims and McMullen denied either
possessing a gun or shooting any of the victims himself. The
police also obtained a written statement from defendant
Howard, wherein Howard admitted assisting McMullen and
Salisbury, but Howard denied possessing any gun himself and
claimed that it was McMullen and Salisbury who shot the
victims. Both statements were introduced at trial, but the
jury was instructed that each statement was admissible only
against the defendant who made the statement and could not be
considered against the other defendant.

Following their arrests, McMullen, Howard and Salisbury were
all placed in the Detroit Police Headquarters' jail where
they allegedly met Joe Twilley, who was also an inmate at the
jail, but had trustee status, thereby giving him the ability
to move about the jail. Twilley claimed that McMullen and
Salisbury both spoke to him about the charged offense and
both told him that all three of them, McMullen, Howard and
Salisbury, committed the offenses together and that all three
of them were armed with guns and participated in shooting the
victims. The statements by McMullen to Twilley and Salisbury
to Twilley were both admitted at trial, not only against the
defendant who made the statement, but also as substantive
evidence against each of the other codefendants implicated in
the statement.

McMullen and Howard both presented an alibi defense. Also,
they each took the stand and denied any involvement in the
offenses. Both admitted signing their respective police
statements, but claimed they were coerced into doing so by
the police, who, they claimed, fabricated the events
described in the statements. McMullen and Howard both denied
discussing the offense with Joe Twilley.

People v. Howard, No. 186972, 1997 WL 33354541, *1-2
(Mich. Ct. App. Jan. 17, 1997) (unpublished). At the close of
the joint trial with one jury for petitioner and McMullen and
a separate jury for Salisbury, petitioner's jury
convicted him of three counts of first-degree felony murder,
three counts of second-degree murder, three counts of armed
robbery, and one count of felony firearm. The trial court
vacated the second-degree murder convictions and sentenced
petitioner to concurrent terms of life imprisonment without
parole on the first-degree felony murder convictions,
concurrent terms of life imprisonment on the armed robbery
convictions, and a consecutive term of two years imprisonment
on the felony firearm conviction.

Petitioner
filed an appeal of right with the Michigan Court of Appeals
raising claims concerning the admission of the
co-defendants' statements to fellow prisoner Joe Twilley,
the admission of his own police statement, the denial of his
request for a separate trial from both co-defendants or a
separate jury from McMullen, the exclusion of certain
testimony, and double jeopardy. The Michigan Court of Appeals
vacated his armed robbery convictions and sentences on double
jeopardy grounds, but denied relief on the other claims and
affirmed his first-degree felony murder and felony firearm
convictions and sentences. Id. at *2-6. Petitioner
filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order.
People v. Howard, 456 Mich. 936, 575 N.W.2d 552
(Feb. 24, 1998).

On
September 6, 2013, petitioner filed a motion for relief from
judgment with the state trial court asserting that: (1) he is
entitled to a new trial based upon newly-discovered evidence,
a July-August, 1998 letter (signed on April 2, 2001) and
related November 28, 2012 affidavit from prisoner Jonathan
Hewitt-El, which shows that Joe Twilley was a police
informant who gave false testimony at trial and shows that he
is actually innocent, (2) trial counsel was ineffective for
failing to challenge the prosecution's case, for failing
to show that petitioner's confession was false and move
for dismissal, and for failing to contact an alibi witness,
Tyiesha Washington (supported by a June 6, 2012 affidavit),
(3) the prosecutor engaged in misconduct, (4) the prosecution
presented insufficient evidence of guilt, and (5) appellate
counsel was ineffective for failing to raise issues on
appeal. The court denied the motion finding that petitioner
raised the claim that Joe Twilley was a police informant on
direct appeal and was denied relief thereby precluding
further review, that affidavits from Jonathan Hewitt-El and
Tyiesha Washington were not newly-discovered, were of
doubtful credibility, and were not of such a nature as to
render a different result on re-trial given the other
evidence of guilt presented at trial, that petitioner failed
to show that trial counsel or appellate counsel were
ineffective, and that petitioner failed to establish good
cause or actual prejudice under Michigan Court Rule
6.508(D)(3) for failing to raise his prosecutorial misconduct
and insufficient evidence claims on direct appeal. People
v. Howard, No. 94-08763-03 (Wayne Co. Cir. Ct. March 27,
2014). Petitioner filed a motion for reconsideration in which
he attached a February 8, 1995 memo and related June 11, 2013
affidavit from former Wayne County Deputy Chief Assistant
Prosecutor Robert Agacinski stating that certain defense
attorneys had reported that certain prisoners, including Joe
Twilley, were intentionally used as police informants and
that Twilley's sentence was reduced due to his
cooperation. The trial court denied reconsideration on June
2, 2014.

Petitioner
dated his federal habeas petition on September 29, 2015. He
asserts the following claims as grounds for relief: (1)
newly-discovered evidence of a Brady violation, (2)
ineffective assistance of trial/appellate counsel for failure
to investigate and present an alibi witness, (3) ineffective
assistance of trial/appellate counsel for failure to file
motion to dismiss (due to a false confession), and (4)
insufficient evidence. Respondent seeks dismissal of the
petition asserting that it is untimely. In reply, petitioner
contends that the petition is timely and/or that he is
entitled to equitable tolling of the one-year period.
Petitioner also seeks to stay the proceedings asserting that
he has newly-discovered evidence and that his petition
contains exhausted and unexhausted claims.

III.
DISCUSSION

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